Native Hawaiian|Campaign Roils Voters

HONOLULU (CN) – A group trying to elect delegates to a constitutional convention to create a self-governing entity of Native Hawaiians is discriminatory and unconstitutional, voters claim in Federal Court. Senate Bill 1025 , enacted in 2011 as Act 195, established a five-member Native Hawaiian Roll Commission , to prepare and maintain a roll of Native Hawaiians qualified to “participate in the organization of the Native Hawaiian governing entity.” Semi-autonomous Office of Hawaiian Affairs, a state agency, funds and administers the Native Hawaiian Roll Commission (NHRC). “Voters who are on the Roll will be entitled to vote for the delegates to a proposed constitutional convention, the intended purpose of which is to choose a form of government under which Native Hawaiians would govern themselves,” the complaint states. Native Hawaiians’ concept of self-governance varies. Some seek separation from the United States – an unlikely prospect. Most support a nation-within-a-nation approach such as mainland Native Americans and Alaska natives. The plaintiffs do not support any form of Native Hawaiian self-governance, saying it would divide the state. They believe that government programs that give preference to Native Hawaiians are race-based and violate the 14th Amendment. On Aug. 13, the Department of the Interior filed a draft rule for regulatory review aimed at establishing a “government-to-government relationship” between Native Hawaiians and Uncle Sam. No text of the rule is available yet. Among the tasks of the Native Hawaiian Roll Commission is to “certify that the individuals on the roll of qualified native Hawaiians meet the definition of qualified Native Hawaiians.” Under Act 195, a qualified Native Hawaiian is an “individual who is a descendant of aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands” or “an individual who is one of the indigenous, native people of Hawaii and who was eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act.” But the Hawaii Homes Commission Act, enacted by Congress in 1920, defined Native Hawaiian as “any descendant of less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778,” according to the complaint. The act made about 200,000 acres of public land available for lease to native Hawaiians at nominal prices. The Native Hawaiians’ battle for sovereignty predates statehood. Friday, Aug. 21, will be Hawaii’s 56th anniversary of statehood. In their Aug. 13 lawsuit against Hawaii, Keli’i Akina and five others claim that “the restrictions on registering for the Roll violate the U.S. Constitution.” The six registered voters say they all declined to register except for two, who were registered without their consent. The NHRC opened the online indigenous registry in July 2012. It closed in January 2014 after 40,000 Hawaiians signed on. The Office of Hawaiian Affairs then transferred 87,000 from its list. After 125,000 people had registered, Judicial Watch requested a copy of the enrollment list, in August 2014. Roll Commission Director Clyde Namuo refused, saying the list was incomplete. In June this year, Hawaii Circuit Court Judge Jeanette Castagnetti ordered the Commission to provide a list of registered applicants in electronic form or hard copy. Plaintiffs Akina, Kealii Makekau, Pedro Kana’e Gapero and Melissa Leina’ala Moniz are of Native Hawaiian descent. Joseph Kent and Yoshimasa Sean Mitsui are non-Hawaiian residents of Hawaii. Akina and Makekau refused to register because they disagree with some of the declarations in the commission’s registration page. Kent and Mitsui lack the required Native Hawaiian lineage. Gapero and Texas-based Moniz say they were registered without their knowledge. The three declarations, which all prospective applicants to the roll must confirm, state: “Declaration One. I affirm the unrelinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-governance. “Declaration Two. I have a significant cultural, social or civic connection to the Native Hawaiian community. “Declaration Three. I am a Native Hawaiian: a lineal descendant of the people who lived and exercise sovereignty in the Hawaiian islands prior to 1778, or a person eligible for the programs of the Hawaiian Homes Commission Act, 1920, or a direct lineal descendant of that person.” The NHRC’s registration page provides a checklist of acceptable documents for “verification of Native Hawaiian ancestry.” Akina and Makekua say they could not agree with the first declaration. “Forbidding those who do not agree with declaration one to register for the roll is a classification based on speech, in violation of the rights of Akina and Makekua,” the complaint states. Governor David Ige, Office of Hawaiian Affairs Chairman Robert K. Lindsey Jr., NHRC Chairman John D. Waihee III and the Akamai and Naiaupuni Foundations are also defendants. The Office of Hawaiian Affairs declined to comment on the lawsuit. The Office of Hawaii’s Attorney General said it is reviewing the complaint. Knowing that race-based qualifications may bring lawsuits, the plaintiffs say, the Office of Hawaiian Affairs intends to use “contractually bound nonprofit organizations as surrogates.” Similar state measures were struck down by the Ninth Circuit in 2000 and by the U.S. Supreme Court in 2002. Akina said the lawsuit is “about preserving the Aloha Spirit and the unity of all people in Hawaii.” He added: “The time has come to stop dividing Hawaii’s people and start uniting them.” Akina is president of the Grassroot Institute of Hawaii. He failed to secure a seat on the Office of Hawaiian Affairs board of trustees last year. The plaintiffs seek declaratory judgment that the registration procedures violate the Constitution. They also seek preliminary and permanent relief enjoining the defendants from requiring applicants for any voter roll to confirm Declaration One, Declaration Two, or Declaration Three, or to verify their ancestry. They are represented by Michael Lilly with Ning Lilly & Jones.